‘I’legality of State Terrorism through Hybrid Warfare

Violence is at the heart of our understanding of the Israeli-Palestinian conflict. In discussing this immensely complicated conflict, it is crucial not only to acknowledge the presence of violence, but to interrogate the nature of the state- and institutional-level dynamics that buttress it.

The reason why is simple: Because the state- and institutional- dynamics are focal to dismantling potential roadblocks to resolution.

In this piece, I seek to offer an entry point to the role that law plays in this volatile conflict. What legal arguments and jurisdictional accommodations have been made, in support of the illegal settlements? How have these accommodations served as a means to legitimize Israeli state action and identity politics? I argue that this process of legitimization and normalization undergirds the structural factors that undermine prospects for conflict resolution.

Settlement Crisis: Legalization, Incentivization, and Normalization

The institutionalization of the settlements is a result of both political and legal decisions, which in concert work to legalize, incentivize, and normalize expanded Israeli civilian presence in the Palestinian Occupied Territories.

Following the 1967 six-day war, Yigal Allon, the Israeli Labor Party government and cabinet member at the time, proposed the Allon Plan that aimed at reconfiguring some of Palestinian territories as land used for Israeli settlements (Karayanni, 2014). The Allon Plan targeted specific regions that served Israel’s defensive interests. For instance, settlements in the Jordan Valley helped secure access to the eastern border that could prevent forces from crossing the Jordan River (Karayanni, 2014). Though proposed and not followed through, the Allon Plan served as a basis for the labor party government’s political agenda in the following years (Shehadeh, 1997), resulting in 31 settlements in the West Bank, 5 settlements with 4,500 Jewish citizens in Gaza by 1977 (Mnookin & Eiran, 2005). In 1978, Matityahu Drobles, head of the Rural Settlement Division of the World Zionist Organization (WZO) at the time, submitted the Drobles Plan. The plan extended the settlement projects even further (Karayani, 2014), paving the way for 21 new settlements inhabited by 1,350 families by 1985 (Karayani, 2014).

The Israeli government’s legal accommodations made civilian transfers and intrusions into Palestinian Territories not only legal, but financially attractive as well. For example, with the lead of the Minister of Housing at the time, Ariel Sharon, the Seven Star Plan in 1991 enabled the establishment of 7 new towns as well as special grants, government-supported mortgages, and tax breaks that provided financial benefits for incoming residents (Karayani, 2014). Likewise, a few of the projects led by the Ministry of Housing, called the “new neighborhoods”, aimed at developing settlements near the municipal boundaries of the city. To maximize financial potential in these metropolitan areas, the Ministry of Housing partnered up with private actors such as contractors, real-estate investors, and construction firms to expand urban development in the settlements (Margalit, 2014). In 1968, the Israeli government expanded the legal jurisdiction to settlement-related business activities through the Israeli Business Licensing Law. Under this law, foreign and local firms were able to safeguard government benefits and foreign investments for their business activities once registered in Israel’s Companies Registrar, which was overseen by the Israeli Ministry of Justice (Azarova, 2018). Research shows that attractive housing prices served as an important motivator for settlers to migrate to the West Bank, compounding on the financial benefits offered by the metropolitan sectors near Jerusalem and Tel Aviv (Ben-Shahar et al., 2019).

By the year 1994, the public expenditure for establishing settlements nearly tripled (Allegra & Maggor, 2022), and the West Bank became the most concentrated area for publicly funded construction sites, reaching a rate of almost 30% of the total public construction activity in the country (Benvenisti, 2019). Newman (1996) described the Israeli settlement crisis as a “double-centrality”, where on the one hand, government-sponsored mortgages and tax breaks provided the private industries with financially beneficial business activities, while on the other hand, civilians interested in cheap housing increased the demand for the settlement to continue.

State Terrorism: Disrupting the “Institutional Fabric”

I believe that the theoretical lens of “state terrorism” can help illuminate the process by which the West Bank settlements have been legitimized and normalized. According to Kapitan (2004), terrorism can involve direct inflictions of violence, such as killing, maiming, or threatening to cause such harm. Less overtly, structural terrorism conducted on the state level is an indirect form of violence. It utilizes positions of authority to disrupt the “institutional fabric” of the society, by depriving access to basic needs such as clean water, food, and medical supplies (Kapitan, 2004).

Jackson et al. (2009) describes state terrorism as the use of political terror that is not primarily aimed at causing direct harm to a specific target. Rather, it is aimed at asserting the domineering presence of state power and intimidation, without having to cause physical marks of violence. Similarly, Blakeley (2009) identified the attempt to convey a political statement to the public as a key feature of state terrorism. In the works of both authors, state terrorism is a communicative strategy seeking to create social, political, and normative changes that become publicly acceptable over time.

The institutionalization of settlements have entrenched Israeli state control and dominance over the mechanisms that delineate the agency of the Palestinian people. According to Kapitan (2004), the establishment of a connective block of settlements is central to Israel’s settlement project. In recent years, satellite images show that settlements surround every major Palestinian population center (Kapitan, 2004). As mentioned earlier, the Israeli government provided grants, mortgages, and tax breaks that incentivized private businesses to capitalize from expanding settlements and attracted incoming settlers with cheap housing (Allegra & Maggor, 2022; Karayanni, 2014). Meanwhile, Palestinians have been subject to deportations, home demolitions, detention without trial, torture, and killings (Demolition Watch, 2018; Kapitan, 2004).

Such intrusions into Palestinian Territories constitute psychological intimidation, evidence that they can be subject to further violence. Israel, essentially, forces the Palestinians into a state of constant anxiety. These state actions, then, are not only physical, but communicative as well. They embody a political statement that seeks to normalize Israeli governance and control over the Palestinians.

Lending Plausible Deniability of “Real” Intent

State terrorism tends to be presented as legitimate acts of defense and diverts accountability to non-state variants (Kapitan, 2004). Jackson et al. (2009) and Blakeley (2009) also suggest that state terrorism can be conducted by state actors, non-state actors, or both. In hybrid warfare, a mixture of state and non-state actors engage in threat operations. This hybrid nature permits covert modes that lend deniability of their “real intentions” and accountability for conducting those operations (Giannopoulos et al., 2021). In hybrid warfare states usually rely on one or a combination of state domains, such as the legal domain (Giannopoulos et al., 2021; Sari, 2020). In such cases, states can exploit their regulatory powers to make legal accommodations in ways that could circumvent accountability, since it is considered lawful (Giannopoulos et al., 2021; Sari, 2020).

Article 49 of the Fourth Geneva Convention criminalizes civilian transfers, and thus, Israel has been condemned for their violation of the law (Pressman, 2020). In response, Israel has been denying state accountability, by claiming that settlements have been voluntarily done (Pressman, 2020), even though the Israeli state actions have created ideal grounds for private actors to produce profit and civilians to move in. Over time, settlement activity has become a legal, legitimate, and financially attractive practice through Israeli state actions, regardless of whether the government was directly or indirectly involved. However, it has been difficult to attribute state accountability, due to the involvement of non-state variants, such as private firms, which makes it increasingly ambiguous to designate the Israeli state as the perpetrator. Leading civilians into making the choice to settle, rather than directly coercing them into doing so, has made it possible to assign blameworthiness to the non-state variants instead.

However indirect the state’s involvement may be argued to be, the Israeli government has been definitive in creating the culture and normalization of expanding settlements, restricting water access, and perpetrating military control and violence. Through institutional and legal modes of state terrorism, Israel has conducted state terrorism that resulted in indirect harms that disrupted the institutional fabric of society.

Implications

Analyzing the Israeli settlements through the lens of state terrorism illuminates the processes of legalization, incentivization, and politicization that have allowed the settlements to thrive. The use of law and non-state actors such as private firms as a means to achieve political goals blurs the distinction between direct and indirect actors, which complicates accountability measures. Here are two potent issues we must consider in order to thwart state terrorism in Israel-Palestine and elsewhere:

First of all, there seems to be a lack of guidance on distributing responsibilities between businesses and home states under existing provisions in international law. Currently, what may resemble closest to this guidance is the UN Guiding Principles on Business and Human Rights (UNGP), which provides guidance and oversight for what constitutes human rights abuses for private businesses (Azarova, 2018). Under the UNGP, the UN Working Group on Business and Human Rights (UNWG) continues to annually update a database that informs businesses that facilitate settlements in the Occupied Palestinian Territories (Azarova, 2018).

Regardless, Azarova (2018) considers the UNGP to be insufficient. For states to be held accountable for the state-sponsored business activities, UNGP requires a high threshold that involves a lengthy and complicated process (Azarova, 2018). On top of that, it is unclear how the legality of such business activities can be determined under the UNGP, especially considering the state’s sovereign right to impose domestic laws (Azarova, 2018). These loopholes may allow for states to address human rights abuses as a matter of private instead of state activity. Regulatory bodies such as the United Nations should develop capacity to deal with the complex interplay between private and state activities and develop countermeasures that could clearly define the state obligations for the harms caused by private actors.

Second, there should be an increased scrutiny to the widespread but often overlooked mechanisms by which states employ indirect, rather than overt violence. Johnson (2018) highlights the need to challenge dominant approaches that involve mitigating visible tactics such as direct inflictions of violence, when there can be violence inflicted latently. The international law and regulatory bodies should be informed of these evolving variations of state terrorism that rely on hybrid modalities and nonstate variants and become resilient to these threat operations to ensure accountability measures are clear and effective.

The Israeli-Palestinian conflict is complex, and nuance matters. Understanding the history of the settlements requires us to understand the analytic ‘how’, beyond the ‘what’. State terrorism implemented through non-state actors calls for a qualitatively different assessment of the conflict, as it introduces roadblocks to resolution that are evidently difficult — if not impossible — to counter with the current international provisions.

Bo Min Keum is an extremism researcher, author, and dialogue facilitator with an academic focus on ideologically motivated violence. Bo Min has graduated with a Bachelors of Arts, Honours with Distinction degree from Simon Fraser University, and will soon be starting her masters at the University of Cambridge, MPhil Criminological Research program.

References

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