Settler Violence Through the Lens of State Responsibility

Since 7 October 2023, public attention partially shifted away from the situation in the West Bank and East Jerusalem. However, UNRWA has released alarming numbers: 444 civilians have been killed by the Israeli “Security Forces” (ISF) since 7 October, among them 110 children. Besides, we can witness a surge of violence by Israeli settlers. Angry mobs keep attacking Palestinian civilians and civilian infrastructure, forcing entire villages to make their run. Even worse, settlers frequently execute Palestinians extra-legally.

This is hardly a novelty. But as settler attacks rise, Israel is apparently unwilling to avert the violence. Recently, the question even has been raised, whether Settler violence equals State violence. This post shall give an overview about what international law has to say about such acts and particularly whether specific acts of settler violence can be attributed to the State of Israel.

Settlement Policy

The UN General Assembly in 1947 awarded the territory west of Jordan to the Palestinian people. Subsequent to the third Arab-Israeli war in 1967, Israel occupied the territory making applicable inter alia the law on occupation. Apart from being codified in the Hague Convention of 1907 and its annexed regulations as well as in the Fourth Geneva Convention of 1949 (GC IV), this body of law is also part of customary international law (see paras. 89, 157) and creates multiple duties for the occupier. For instance, Art. 43 of the 1907 Hague Regulations obliges to “restore and ensure, as far as possible, public order and safety” in the occupied territory. Supplementary, the occupier bears responsibility to provide vital needs and a functioning infrastructure to the civilian population, Art. 55, 56 GC IV. In the West Bank, the prohibition to transfer “parts of [the occupier’s] own civilian population into the territory it occupies”, Art. 49 VI GC IV, is of utmost importance. The ICJ in its Wall Opinion already applied this provision to Israel’s settlement policy, finding that Israel violated the obligation (para. 120). Also, the UN Security Council in Resolution 2334 confirmed “that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law” and also called “for immediate steps to prevent all acts of violence against civilians […] as well as all acts of provocation and destruction”.

It is not a secret that Israel never implemented those demands. Conversely, it is increasingly scaling up its settlement game, creating an atmosphere fruitful for settler violence (see here, here and here). This calls for a rethinking of the distribution of responsibility.

Israel’s Responsibilities

Israel is primarily obliged to protect the civilian population under its occupation from settler violence. As the IACtHR and the ECtHR have held, a lack of due diligence can amount to the State’s responsibility when private acts took place within its jurisdiction (para. 172; para. 115) inverting even the burden of proof to the detriment of that State (paras. 122 et seq.). Israel is accordingly under a duty to protect the Palestinians under its occupation and to prevent their displacement. But there is a decisive difference between a State failing to fulfil its protective obligations and a State being involved in private acts of violence to an extent which transforms them to State acts. The pressing question therefore is: Are specific acts of settler violence attributable to Israel?

As settlers in the West Bank are regularly neither State organs nor exercising governmental authority, Arts. 4-7 Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001 (ASR) disqualify for the assessment. However, Art. 8 ASR allows for the attribution of private acts, when the latter are performed under the instruction, direction or control of a State. Delimiting the exact confinements can be difficult, as the terms are not authoritatively defined. However, ruling out “instruction” and “direction” ab initio, we can focus on the “control”-criterion. The required minimum is the creation of a relationship which from a third-party perspective appears as if the State effectively steers respective private conduct (pp. 47 et seq.; para. 115; para. 400). As Mais Qandeel intriguingly argued, the facts on the ground could indicate that Israel’s financial and political support for settlements generates Israel’s control of settler action. As violence next to the aggressive expansion of settlements is considered an indispensable element of Israeli policy, such interpretation appears intuitive. But, even though violent acts fall squarely within Israel’s interests, this wouldn’t suffice. Taking as the basis an effective control (para. 115) or even an overall control approach (paras. 117 et seq.), it seems bogus to assume even the widest understanding of “control”. Settler violence presents itself as mob violence rather than being centrally organized by Israel to further its interests. To my knowledge, there is no evidence of open collusion, and general State policy as such is prima facie insufficient to establish control (see paras. 240 et seq.). The assessment might differ in cases where those acts constitute a de facto delegation and materialisation of Israel’s long-term policy goals – a situation which will be inherently difficult to prove. Thus, even though Israel undeniably benefits from settlement expansion only supporting and even financing settler colonialism has too tenuous a link to successive violent acts for assuming control.

What about other rules of attribution?

Recalling the sponsoring of settlements and considering several public statements by Israeli officials, Art. 11 ASR could be a viable route for our case, ascribing private acts to a State when it “acknowledges and adopts the conduct in question as its own”. The ICJ in its famous Tehran-Hostages-Case has set a standard for attributability regarding the “endorsement” by a State. The Iranian government welcomed and approved of the occupation of the US-embassy in Teheran and the hostage-taking by private individuals. According to the Court, the “approval given to these facts by […] organs of the Iranian State […] translated [the acts] into acts of State.” (§ 74). Further, the ECtHR in a 2020 judgment (see here) tackled on Art. 11 ASR. There, an Azerbaijani soldier killed an Armenian soldier in Hungary and received a life sentence. After being transferred to Azerbaijan, which guaranteed further imprisonment, he was instead pardoned and honoured. However, the Court found that Azerbaijan’s actions did not constitute attribution, as the State’s adoption must be “clearly and unequivocally”.

Thus, we can distil some determinants: To render private action attributable, simply allying and fraternizing with the initial wrongdoer is not sufficient, ruling out mere appreciation of a certain status quo. Further, a definitive element of State acceptance is required, rendering private conduct the State’s “own” conduct.

Applying these parameters in our case is challenging. To verify approval, a case-by-case study is essential in order not to overstretch attributive rules. But what about seemingly clear-cut cases with “permissive” bystander-like ISF-forces? Videos document settlers committing anti-Palestinian crimes with soldiers watching and afterwards guiding delinquent settlers back to their settlements; others show armed ISF-soldiers preventing Palestinians from protecting their properties and families from violent mobs (here). However, even assuming appreciation and official approval, another obstacle must be overcome: it is questionable if any state agent can perform required acts. While e.g. Art. 4 ASR clearly makes “[t]he conduct” of “any State organ” attributable to the State, Art. 11 ASR is considerably less precise. This vagueness has to be counterbalanced by applying Art. 11 ASR only to cases in which some degree of overall State representation can be observed. Thus, much speaks in favour of only accepting the State’s overall conduct or competent and representative State organs – and those will scarcely celebrate such acts publicly.

Is this a dead-end for the assessment? Not necessarily. In Tehran-Hostages, the ICJ highlighted Iran’s failure to fulfil its positive obligations and terminate the illegal situation in the embassy (paras. 74 et seq.). At a distinct point in time this violation was joined by a similar violation: not only had Iran omitted the embassy’s protection; it approved and endorsed those same private acts, rendering them State acts. It is thus reasonable to say that private acts are attributable to a State, if there was an illegal omission in the first place and subsequent approval and endorsement consolidate the prior acts. This also explains why the ECtHR in the above-mentioned judgment denied comparability with the Tehran-Hostages-Case: There simply was no prior tolerance of an unlawful situation.

Translating this to our case, we can draw on the determinations above, clearly illustrating Israel’s positive obligations, which it continuously does not comply with. By leaving settlers a free hand when driving out Palestinians (p. 9), it creates an illegal situation which it uses as means to reach its (illegal) policy goals. But it does not stop there – Israel commits itself to those acts, systematically integrating the acquired status quo into the pursuit of its policy goals, thus approving of the acts as acts “of its own”. Take just as an example the structural omission of Israeli soldiers regarding violent settlers (here), the retroactive legalization of illegally established settlement outposts (see pp. 42 et seq., p. 53; see further pp. 7 et seq.) or the official allocation of water to those outposts (p. 20). Further, Israel systematically refrains from investigating acts of settler violence.

All this evidences endorsement of settler violence, opening the door for attribution to Israel. I do not deem it necessary to provide for explicit statements of approval, as this would amount to a “ticking of boxes”. I would rather refer to the ILC-commentary stating that “[a]cknowledgment and adoption of conduct by a State might be express […], or it might be inferred from the conduct of the State in question” (pp. 53, 54).

As actions speak louder than words, the inference of Israeli acknowledgment of settler violence does not appear outlandish. However, individual cases need to be assessed one by one.

Conclusion

The current situation asks for the international community’s action. Therefore, it is to be welcomed that States increasingly condemn and sanction settler violence (see here, here, here, here, here and here). For Israel, living up to those expectations will include a dramatic change in its settlement policy. Minding senior politicians speaking of “victory through settlement” or demands to silence critics of settler violence, this is sadly an unlikely wish. As the ICC’s prosecutor recently stated regarding settler violence, “Israel has a fundamental responsibility as an occupying power [to] investigate those crimes, to prosecute those crimes, to prevent their occurrence […]”. As this post has shown, a failure to live up to this responsibility may not only violate Israel’s positive obligations under IHL and IHRL, but may also be one indicator for attributability of settler-violence to Israel.